MEWA SINGH Vs. BALDEV KRISHAN

JUDGEMENT

(1.) MEWA Singh and others sons of Bachan Singh-plaintiffs filed suit for permanent injunction against Baldev Krishan and others restraining the latter from taking forcibly the possession of the land in suit which measures 17 kanals 4 marlas as described in the heading of the plaint except in due course of law. It is alleged in the plaint that the land in suit was the ownership of Baldev Krishan-defendant No. 1 and was in his possession per family partition. Baldev Krishan mortgaged with possession the land measuring 17 kanals 4 marlas by way of registered mortgage deed dated 16.10.1987 for a sum of Rs. 35,000/- with the plaintiffs. So far, the land in question has not been redeemed and the plaintiffs are in possession of the land in suit since then. Baldev Krishan got the land partitioned in connivance with other defendants but without arraying the plaintiffs as party in the partition proceedings. Baldev Krishan-defendant wants to take possession of the land in suit on the basis of said partition.

(2.) DEFENDANTS contested the suit of the plaintiffs. Baldev Krishan-defendant was co-sharer to the extent of 9/16 share in the total land. Siri Ram and Ramesh Kumar-defendants No. 2 and 3 are co-sharers to the extent of 3/16. Pawan Kumar-defendant No. 4 was entitled to 1/4th share. Other co-sharers are entitled to 3/16 share out of the suit land. Baldev Krishan-defendant No. 1 was not competent to mortgage the land measuring 17 kanals 4 marlas because he was co-sharer/co-owner to the extent of 9/16 share. Vide order dated 10.12.1992 suit land was partitioned by the A.C. 1st Grade, Mansa and the land measuring 3 kanals 6 marlas out of the suit land fell to the shares of Siri Ram and Ramesh Kumar-defendants No. 2 and 3 according to the partition proceedings and they are entitled to take possession in due course of law. It was alleged that the plaintiffs had no cause of action. It was alleged that the defendants were taking possession of the land measuring 3 kanals 6 marlas which had fallen to their share according to the order passed by the AC 1st Grade in partition proceedings. The plaintiff had no right to retain possession of the land.

(3.) VIDE order dated 2.4.1997, Civil Judge (Jr. Division), Mansa declared the plaintiffs' suit viz. the plaintiffs are entitled to retain possession of the mortgaged land, till the mortgage is redeemed in accordance with the law in view of his finding that the land in suit measuring 17 kanals 4 marlas had been mortgaged with possession by Baldev Krishan-defendant with the plaintiffs vide registered mortgage deed dated 16.10.1987 for a sum of Rs. 35,000/- and the mortgage has not been redeemed so far by the defendants and till the mortgage is redeemed the defendants are not entitled to take possession. It was found that the plaintiffs could not be dispossessed in pursuance of partition proceedings, in which they were not party. It was found that the defendants were not entitled to take possession till mortgage was redeemed and the plaintiffs were paid off.